In what seemed would be a fairly smooth Attorney General confirmation process, Judge Michael Mukasey has hit a snag after telling Congress he wasn't sure if waterboarding constituted torture. Mukasey has refrained from calling waterboarding torture, and therefore illegal, despite calls by the Senate Judiciary Committee that he do so for the confirmation. Herein lies the absurdity. Congress, represented by the Judiciary Committee, demands that an AG candidate declare an act specifically illegal. But, this is backwards. Congress is responsible for passing laws and determining the legality or illegality of a measure. The AG has the responsibility to enforce those laws.
If Congress is so concerned about making waterboarding explicitly illegal, they should fulfill their Congressional responsibility and introduce a measure to outlaw the practice. Odds are favorable that they would have enough votes to pass cloture in the Senate; John McCain, who has long opposed the practice, would certainly stand with them on this issue and probably carry over more supporters. Once the measure passes and gets through a Presidential veto, the AG would have no options but to enforce the law. Interrogators would lose waterboarding as a technique against detainees. All violations of the new law would be subject to prosecution by the Justice Department. This is a straightforward legislative practice, yet since Congress seems to be abdicating its role as legislator, we have this ridiculous spectacle demanding the AG create laws instead of enforce them.
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